PART 6
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RECORDS, AUDITS AND AUDITORS
SECTION 66
OBLIGATIONS OF AUDITORS
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COMPLIANCE
66(1)
When section applies.
This section applies to a person in relation to an RSA provider if:
(a)
the person forms the opinion that it is likely that a contravention of this Act or the regulations or the
Financial Sector (Collection of Data) Act 2001
may have occurred, may be occurring, or may occur, in relation to the RSA provider; and
(b)
the person formed the opinion in the course of, or in connection with, the performance by the person of audit functions under this Act or the regulations in relation to the RSA provider.
History
S 66(1) amended by No 121 of 2001, s 3 and Sch 2 item 87, by inserting
"
or the
Financial Sector (Collection of Data) Act 2001
"
after
"
regulations
"
in para (a), effective 1 July 2002. For application provision see history note under s 3(1).
66(2)
Section does not apply if the person believes that his or her opinion is not relevant to the performance of audit functions.
This section does not apply to the person if the person has an honest belief that the opinion is not relevant to the performance of those functions.
66(3)
RSA provider and Regulator to be told about the matter.
Subject to subsection (4), the person must, as soon as practicable after forming the opinion mentioned in paragraph (1)(a):
(a)
tell the RSA provider about the matter in writing; and
(b)
if the contravention about which the person has formed the opinion mentioned in paragraph (1)(a) is of such a nature that it may affect the interests of holders of RSAs
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tell the Regulator about the matter in writing.
History
S 66(3) substituted by No 53 of 2004, s 3 and Sch 3 item 2, effective 1 July 2004. No 53 of 2004, s 3 and Sch 3 item 11(1) contains the following transitional provision:
11 Transitional provision
(1)
On and after commencement:
(a)
the amendments do not apply in relation to a matter that was told to an RSA provider, under section
66
of the
Retirement Savings Accounts Act 1997
, before that commencement; and
(b)
section 66 of that Act, as in force immediately before that commencement, continues to apply in relation to that matter.
S 66(3) formerly read:
66(3)
RSA provider to be told about the contravention.
Subject to subsection (4), the person must tell the RSA provider about the matter in writing.
66(4)
The person may not have to tell the RSA provider or Regulator about the matter.
The person does not have to:
(a)
tell the RSA provider about the matter if:
(i)
the person has been told by another person to whom this section applies that the other person has already told the RSA provider about the matter; and
(ii)
the first-mentioned person has no reason to disbelieve that other person; or
(b)
tell the Regulator about the matter if:
(i)
the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and
(ii)
the first-mentioned person has no reason to disbelieve that other person.
History
S 66(4), (5), (5A), (6), (7) and (8) substituted for s 66(4), (5), (6), (7), (8) and (9) by No 53 of 2004, s 3 and Sch 3 item 3, effective 1 July 2004. For transitional provision, see note under s 66(3). S 66(4) formerly read:
66(4)
The person may not have to tell the RSA provider about the contravention.
The person does not have to tell the RSA provider about the matter if:
(a)
the person has been told by another person who is subject to this section that:
(i)
that other person has already told the RSA provider about the matter; and
(ii)
that other person has also told APRA about the matter or has given the RSA provider a written notice under subsection (7); and
(b)
the first-mentioned person has no reason to disbelieve that other person.
S 66(4) amended by No 54 of 1998.
66(5)
Penalties for misinformation.
A person (the
first person
) commits an offence if:
(a)
this section applies to the first person; and
(b)
the first person is aware of a matter that must, under this section, be told to an RSA provider; and
(c)
the first person tells another person to whom this section applies that the first person has told the RSA provider about the matter; and
(d)
the first person has not done what the first person told the other person he or she had done.
Penalty: Imprisonment for 12 months.
Note:
Chapter
2
of the
Criminal Code
sets out the general principles of criminal responsibility.
History
S 66(4), (5), (5A), (6), (7) and (8) substituted for s 66(4), (5), (6), (7), (8) and (9) by No 53 of 2004, s 3 and Sch 3 item 3, effective 1 July 2004. For transitional provision, see note under s 66(3). S 66(5) formerly read:
66(5)
Penalty for misleading information.
If:
(a)
this section applies to a person; and
(b)
that person is aware of a matter that must, under this section, be told to the RSA provider; and
(c)
the person tells another person that he or she has taken the action described in subparagraphs (4)(a)(i) and (ii) when the person has not taken that action;
the person is guilty of an offence against this subsection.
Penalty: Imprisonment for 12 months.
Note:
Chapter
2
of the
Criminal Code
sets out the general principles of criminal responsibility.
S 66(5) amended by No 31 of 2001, s 3 and Sch 1 items 131 and 132, by omitting
"
knowingly
"
after
"
the person
"
in para (c) and inserting the note at the end, effective 15 December 2001.
66(5A)
A person (the
first person
) commits an offence if:
(a)
this section applies to the first person; and
(b)
the first person is aware of a matter that must, under this section, be told to the Regulator; and
(c)
the first person tells another person to whom this section applies that the first person has told the Regulator about the matter; and
(d)
the first person has not done what the first person told the other person he or she had done.
Penalty: Imprisonment for 12 months.
Note:
Chapter
2
of the
Criminal Code
sets out the general principles of criminal responsibility.
History
S 66(4), (5), (5A), (6), (7) and (8) substituted for s 66(4), (5), (6), (7), (8) and (9) by No 53 of 2004, s 3 and Sch 3 item 3, effective 1 July 2004. For transitional provision, see note under s 66(3).
66(6)
No civil liability for telling about a matter.
A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or the RSA provider, about a matter as required by this section.
History
S 66(4), (5), (5A), (6), (7) and (8) substituted for s 66(4), (5), (6), (7), (8) and (9) by No 53 of 2004, s 3 and Sch 3 item 3, effective 1 July 2004. For transitional provision, see note under s 66(3). S 66(6) formerly read:
66(6)
APRA may be told.
The person may tell APRA about the matter. The person is not liable in a civil action or civil proceeding in relation to the telling.
S 66(6) amended by No 54 of 1998.
66(7)
Offences.
A person commits an offence if the person contravenes subsection (3).
Penalty: 50 penalty units.
History
S 66(4), (5), (5A), (6), (7) and (8) substituted for s 66(4), (5), (6), (7), (8) and (9) by No 53 of 2004, s 3 and Sch 3 item 3, effective 1 July 2004. For transitional provision, see note under s 66(3). S 66(7) formerly read:
66(7)
RSA provider's report.
If a person:
(a)
tells the RSA provider about the matter; and
(b)
does not tell APRA about the matter;
the person must, as soon as practicable, give the RSA provider a written notice requesting the RSA provider to give the person, before the end of the period specified in the notice, a written report about the action (if any) the RSA provider has taken, or proposes to take, to deal with the matter. The period specified in the notice must be reasonable. The RSA provider must comply with the request.
S 66(7) amended by No 54 of 1998.
66(8)
A person commits an offence if the person contravenes subsection (3). This is an offence of strict liability.
Penalty: 25 penalty units.
Note 1:
For
strict liability
, see section
6.1
of the
Criminal Code
.
Note 2:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
History
S 66(4), (5), (5A), (6), (7) and (8) substituted for s 66(4), (5), (6), (7), (8) and (9) by No 53 of 2004, s 3 and Sch 3 item 3, effective 1 July 2004. For transitional provision, see note under s 66(3). S 66(8) formerly read:
66(8)
Report to APRA.
If a person makes such a request, and either:
(a)
the RSA provider does not comply with the request; or
(b)
the RSA provider complies with the request, but the person is dissatisfied with:
(i)
the action taken, or proposed to be taken, by the RSA provider to deal with the matter concerned; or
(ii)
the inaction of the RSA provider in relation to the matter concerned;
the person must give APRA a written report about the matter as soon as practicable after:
(c)
if paragraph (a) applies
-
the expiry of the deadline for the receipt of the report; or
(d)
if paragraph (b) applies
-
the person becomes dissatisfied as mentioned in that paragraph.
S 66(8) amended by No 54 of 1998.
66(9)
(Repealed by No 53 of 2004)
History
S 66(4), (5), (5A), (6), (7) and (8) substituted for s 66(4), (5), (6), (7), (8) and (9) by No 53 of 2004, s 3 and Sch 3 item 3, effective 1 July 2004. For transitional provision, see note under s 66(3). S 66(9) formerly read:
66(9)
Offence.
A person who intentionally or recklessly contravenes subsection (3), (7) or (8) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.
Note:
Chapter
2
of the
Criminal Code
sets out the general principles of criminal responsibility.
S 66(9) amended by No 31 of 2001, s 3 and Sch 1 item 133, by inserting the note at the end, effective 15 December 2001.
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